VARINDER KUMAR vs. DIV. COMM., PATIALA & ORS

Civil Writ Petition No.4473 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.4473 of 2011 Date of Decision:05.05.2011 Varinder Kumar ......Petitioner Versus Divisional Commissioner, Patiala and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Vijay Sharma, Advocate, for the petitioner. Mr.Harsh Aggarwal, Advocate, for the respondents. **** M EHINDER

S INGH

S ULLAR

, J.(oral)

Concisely, the facts, relevant for deciding the instant writ petition and emanating from the record, are that the House-Tax Sub-Committee of the respondent-Municipal Corporation, Patiala(for brevity “the respondent-MC”) assessed the house-tax on the property of the petitioner, for the assessment year 2008-09, by virtue of order dated 09.07.2009(Annexure P-6), in view of the provisions of the Punjab Municipal Corporation Act, 1976(hereinafter to be referred as “the Act”) and raised a House-Tax Bill(Annexure P-7) to recover the amount of tax. 2. Aggrieved by these orders, the appeal(Annexure P-8) filed by the petitioner was dismissed by the Divisional Commissioner, Patiala Division, Patiala-cum-Appellate Authority(for short “the Appellate Authority”) by means of impugned order dated 09.03.2010(Annexure P-12). 3. The petitioner still did not feel satisfied and preferred the instant writ petition, challenging the impugned order(Annexure P-12), invoking the provisions of Articles 226/227 of the Constitution of India. 4. The case set-up by the petitioner, in brief, insofar as relevant, was

Civil Writ Petition No.4473 of 2011 2 that during the pendency of the appeal, he filed an application dated 04.01.2010 (Annexure P-9), for allowing him to deposit the impugned pre-deposit amount of house-tax, for the relevant assessment year, under protest. Thereafter, he deposited the revised house-tax, vide receipt dated 06.01.2010(Annexure P-10). 5. Levelling a variety of allegations and narrating the sequence of events, in all, the petitioner claimed that although he has already paid the pre- deposit amount of house-tax under Section 147 of the Act, before the hearing of the appeal, in view of the law laid down by this Court in Civil Writ Petition No.16476 of 2008 titled as M/s Sham Bagh Palace Versus State of Punjab and others, decided on 11.02.2009(Annexure P-11), but still the Appellate Authority dismissed his appeal on the technical ground of non-payment of pre-deposit amount, by way of impugned order(Annexure P-12). 6. The respondents contested the claim of the petitioner and respondent Nos.2 and 3 filed their joint written statement, inter alia, pleading certain preliminary objections of, maintainability of the writ petition, cause of action and locus standi of the petitioner. According to the contesting respondents, that since the petitioner did not pay the entire pre-deposit amount due, so, the Appellate Authority has rightly dismissed his appeal. It will not be out of place to mention here that the contesting respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. 7. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after considering the entire matter deeply, to my mind, the present writ petition deserves to be accepted in this context. 8. As is evident from the record that the respondent-MC has assessed the house-tax on the property of the petitioner by way of impugned order (Annexure P-6). The appeal filed by him(petitioner) was dismissed by the Appellate Authority, vide impugned order(Annexure P-12), the operative part of which is as under:-

Civil Writ Petition No.4473 of 2011 3 “I have heard both the counsels and have also gone through the order in question. In this case, the counsel for the respondent has raised the objection that the appeal is not maintainable as the appellant has not deposited the entire amount in dispute before filing the appeal in this court. I am in agreement with the contentions of the counsel for the respondent as it is mandatory provision under section 147 of the Punjab Municipal Corporation Act, 1976 that no appeal shall be entertained under section 146 unless the amount, if any, in dispute in the appeal has been deposited by the appellant in the office of the Corporation. As the mandatory provision of law has not been complied with before filing the appeal in this court, I do not find any reason to continue with this appeal and the same is hereby rejected.” 9. As is clear that, the main ground, which appears to have been weighed with the Appellate Authority, was that since the petitioner did not pay the pre-deposit amount, so, the appeal was rejected through the medium of impugned order(Annexure P-12). 10. Here, to my mind, the Appellate Authority committed a legal error in this relevant behalf. What is not disputed here is that during the pendency of the appeal, the petitioner moved an application dated 04.01.2010(Annexure P-9) and deposited the amount of house-tax, by way of receipt dated 06.01.2010(Annexure P-10). That means, the petitioner has already deposited the amount of impugned house-tax of the relevant assessment year and duly complied with the provisions of Section 147 of the Act. 11. Ex facie, the celebrated argument of the learned counsel for the respondent-MC that, as the petitioner was required to deposit the entire amount of house-tax of previous and subsequent years as well, therefore, the Appellate Authority has rightly dismissed his appeal, is not only devoid of merit but misconceived as well. The petitioner was only required to pay the pre-deposit amount of house-tax for the relevant assessment year(not otherwise) under Section 147 of the Act. This matter is not res integra and is well settled.

Civil Writ Petition No.4473 of 2011 4 12. An identical question came to be decided by a Division Bench of this Court in case titled as ANZ Grindlays Bank Limited, Amritsar Versus Municipal Corporation, Amritsar, 1999(1) PLR 254. Having considered the relevant provisions of Sections 146 and 147 of the Act, it was ruled (para 6) as under:- “We have given serious thought to the respective submissions and agree with Shri Sarin that the order passed by the government deserves to be voided on the ground of principles of natural justice because it does not contain reasons. It cannot be disputed that while deciding the appeal filed by the petitioner under Section 146 of the Act of 1976, the government was discharging quasi-judicial functions and, therefore, it was duty bound to record cogent reasons for not accepting the request of the petitioner to hear and decide the appeal without insisting on prior deposit of the tax. In any case, the government should have given opportunity to the petitioner to deposit the tax if it felt that the appeal does not deserve to be entertained without prior deposit of the arrears of tax. In our view, the government's failure to give an opportunity to the petitioner to fulfill the requirement of the statute and also in view of the fact that the petitioner deposited the amount of arrears immediately after the rejection of its appeal, we find it just and proper to set aside the order Annexure P-9 with the direction that the appeal filed by the petitioner be decided afresh.” 13. Sequelly, the same question again came to be answered by a Co- ordinate Bench of this Court(Ajai Lamba, J.) in Civil Writ Petition No.16476 of 2008 titled as M/s Sham Bagh Palace Versus State of Punjab and others, decided on 11.02.2009(Annexure P-11), wherein after interpreting the provisions of Sections 146 and 147 of the Act, it was held that the Appellate Authority can require a pre-deposit of the disputed amount of house-tax, which is subject matter of the appeal only and the demand of the subsequent amount of house-tax accrued upto-date, cannot legally be raised to enable the assessee to file the appeal. The assessee was liable to deposit only the impugned amount for the relevant assessment year as pre-deposit amount for hearing the appeal.

Civil Writ Petition No.4473 of 2011 5 14. Subsequently, the same view was again reiterated by this Court in case titled as Yadavindra Public School Association Patiala Versus State of Punjab and others, 2011(2) R.C.R.(Civil) 287. 15. Therefore, the argument of the learned counsel that the Appellate Authority fell in error and illegally dismissed the appeal of the petitioner on a technical ground of non-payment of pre-deposit amount of tax, without any basis, has considerable force and the contrary arguments of the learned counsel for the respondent-MC “stricto-sensu” liable to be and are hereby repelled under the present set of circumstances, as the law laid down in the aforesaid judgments “mutatis-mutandis” is applicable to the facts of the present case and is the complete answer to be problem in hand. In this manner, the impugned order (Annexure P-12) cannot legally be sustained in the obtaining circumstances of the case. 16. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of hearing of the appeal, the instant writ petition is accepted. Consequently, the impugned order(Annexure P-12) is hereby set aside and the matter is remitted back to the Appellate Authority, for its fresh decision on merits, without demanding any pre-deposit amount in excess of the impugned amount of the relevant assessment year in this relevant connection. 17. Needless to mention here that, nothing observed here-in-above would reflect, in any manner, on merits of the main case, as the same has been so recorded for a limited purpose of deciding the present controversy. 18. The parties through their counsel are directed to appear before the Appellate Authority on 21.07.2011 for further proceedings. May 05, 2011 (MEHINDER SINGH SULLAR) seema

JUDGE Whether to be referred to reporter?Yes/No